In a unanimous vote, the House Judiciary Committee approved the Email Privacy Act, a long-awaited update to the 30-year-old Electronic Communications Privacy Act (ECPA).  The proposed changes would strengthen the privacy protections for email and other cloud-storage services by closing a loophole that allowed law enforcement to access older data without obtaining a warrant. 

By Lala Qadir

The Supreme Court of Canada recently issued a 4-3 decision that gave the police a green light in conducting warrantless searches of an arrestee’s cell phone as long as the search is directly related to the suspected crime and records are kept.  Over three dissenting judges that characterized mobile phones as “intensely personal and uniquely pervasive sphere of privacy,” the majority held a balance can be struck that “permits searches of cell phones incident to arrest, provided that the search—both what is searched and how it is searched—is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”

Canada’s high court ruling stands in stark contrast to that of the United States.  Earlier this year, the United States Supreme Court heard argument on two cell phone cases—Riley and Wurie—ultimately holding that warrantless searches of cell phones, even when held incident to an arrest, were unconstitutional unless they were subject to specific exceptions to the Fourth Amendment’s warrant requirement.
Continue Reading Canada’s Highest Court Rules That Police Can Search Cell Phone Contents After Arrest

Last Friday, Rep. Zoe Lofgren (D-CA) introduced the ECPA 2.0 Act, H.R. 6529, which would strengthen the legal standards for law enforcement to gain access to electronic communications and location information.  The Electronic Communications Privacy Act (ECPA) is more than 25 years old and is widely seen as needing modernization to address changes in digital storage, the cloud, and location-based services.  As we’ve previously noted, government access to location information is an ongoing issue for legislators, courts, and government officials.  

Continue Reading Rep. Lofgren Introduces Legislation to Update ECPA

Last week, the California legislature passed one of the nation’s most restrictive bills governing law enforcement’s ability to access location information.  Under the California Location Privacy Act, state and local government agencies would be required to secure search warrants before obtaining historical or current location information for any electronic device.  The California bill would curtail some of the law enforcement practices described in this New York Times article, which noted that cellphone carriers responded to 1.3 million law enforcement demands in 2011 — many of which came in the form of subpoenas, emergency requests, or other demands that can be less legally burdensome to secure than warrants.  

The California bill contains only a few narrow exceptions to the warrant requirement, such as responding to a user’s 911 call; with a user’s informed, affirmative consent; or in emergencies involving immediate danger of death or serious physical injury.  In the final round of amendments, the bill’s sponsors added an immunity provision for providers of location information: the Act is not to be construed “to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons, for providing location information.”

Continue Reading California Legislature Bans Warrantless Location Tracking

Government officials must seek a warrant to compel the disclosure of cell phone location data, a federal district court ruled, holding that a federal law allowing the government to obtain some information without a warrant violates the Fourth Amendment.

In a one-page order upholding a magistrate judge’s decision, U.S. District Judge Lynn N. Hughes, of the Southern District of Texas, held Nov. 11 that records showing the “date, time, called number, and location of the telephone when the call was made” are constitutionally protected, and thus the government needs a warrant based on probable cause to compel the disclosure of such data. That standard is higher than the standard required for a court order under the Stored Communications Act, which requires a government entity to demonstrate that there are “specific and articulable facts showing that there are reasonable grounds to believe” the contents of or records about an electronic communication are “relevant and material to an ongoing criminal investigation.”

Continue Reading Federal Court Finds Warrant Required to Obtain Cell-Phone Locations